Modern Day Litigation, Cyber Defamation, and Law in Sports & Entertainment

Buckeyes’ Consequences, Part II: What is a Contract?

Many people believe that a contract has to be in writing, or it’s not a contract. Not true. Another common mis-perception is that a contract is a document or tangible piece of paper. Also not true. Although contracts are oftentimes written, the contract is the actual agreement itself, and not the paper it’s written on, per se. True, the law does require that certain types of contracts be in writing to be enforceable (this isn’t one of them), the lack of a written agreement will not prevent most other contracts being enforced. One caveat, however, is that without a written record of an agreement, it is oftentimes difficult to prove that the agreement’s existence in the first place, much less the agreement’s terms, so in that case, failure to have a contract in writing would serve as a barrier to enforceability.

Generally speaking, a valid contract has three requirements:

(1) An offer;

(2) Acceptance;

and

(3) Consideration (this is just a fancy word that means that the parties have to exchange, or promise to exchange something of value).

In the circumstances with the suspended Buckeyes (see Consequences, Jan. 5), Coach Tressel offered to let them play in the Sugar Bowl if the players promised to return to the team in 2011 (and not go to the NFL). The players accepted. The consideration is the players’ promise to forgo the NFL draft this spring, and to serve whatever suspension the NCAA passes down.

In this case, there wouldn’t be much difficulty proving that the players and the coach made this agreement: Tressel went on national TV and discussed the deal in detail, and none of the players spoke up to object (this is known as a tacit agreement). Furthermore, members of the media asked some of the players, directly, about their promise(s) to return to Ohio State next year, to which the players each gave an affirmative response.

Breach of contract occurs when one party doesn’t honor his contractual obligation. In reality, people breach contracts everyday, but it doesn’t always make sense to sue. There are two reasons for this:

(1) Even if you successfully prove that the other party breach the contract, you are only entitled to the damages that you can prove (In other words, the court won’t award you a lot of money simply because the other guy acted like a douchebag.);

(2) Regardless of whether you win or lose your contract case, in almost every circumstance you will still have to pay your own attorney. So unless your damages are significant, and you’re pretty sure you can prove them, it might not be worth it to file suit.

Turning back to the Buckeyes’ promise to return in 2011—if the players reneged, and Ohio State sued them, what are the university’s damages? This is what attorneys refer to as speculative damages. But for the sake of argument, let’s suppose that Ohio State claims that the players’ breach caused the university to lose millions in lost ticket sales, endorsements, and broadcast royalties. The players would counter by saying that if they hadn’t played in the Sugar Bowl, Ohio State would’ve lost, and they would’ve lost even more than what they lost as a result of the players’ breach. And they’d be right.

About Joe

Before I became an attorney, I played the saxophone for a living. Over the years, I played with the likes of Grammy-award winners Ray Charles, The Four Tops, and Tom Harrell. I lived in Brooklyn, Manhattan, eventually New Jersey, and oftentimes out of a suitcase. I made the decision to go back to law school, because I felt like I had an incredibly unique perspective to offer to my clients.

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